Notice to tenant for eviction inside brown envelope and face mask on top.The Center for Disease Control’s (CDC) Eviction Moratorium confirms President Reagan’s quip that a government program is the “nearest thing to eternal life we’ll ever see on this earth.” As explained in my prior post, the CDC issued an order in September 2020 “temporarily” halting residential evictions , reasoning that it was necessary to combat the spread of the coronavirus (COVID-19). That moratorium was originally set to expire on December 31, 2020, but Congress extended it by one month. Before that congressional extension expired, the CDC—now acting under the Biden administration—twice extended the moratorium, with the latter extension due to expire on June 30, 2021.

After repeatedly stating that he lacked the authority to extend the Eviction Moratorium again, President Biden caved into pressure from progressive Democrats and did exactly that earlier this month. The President doubted that the new extension would pass “constitutional muster” but was hopeful that the legal challenges would provide more time to distribute congressional funds for rental assistance.

Like the prior versions, the latest version of the Eviction Moratorium generally prohibits the evictions of a residential tenant who expects to earn $99,000 or less in 2021 (or $198,000 if filing jointly) and signs a declaration stating that he or she has lost income, applied for government assistance, and would likely become homeless or forced to move into a more crowded living situation if he or she was evicted. But, unlike prior versions, the latest one does not ban evictions nationwide. Instead, it applies in counties that are “experiencing substantial or high levels of community transmission of [COVID-19].” This latest version is set to expire on October 3, subject, of course, “to revision based on the changing public health landscape.”

The upshot is that the Eviction Moratorium is in effect for over 90 percent of the country and nearly all counties in Texas. Check this map to determine whether it applies to your property. The courts, however, are split on whether the Moratorium is legal. The Supreme Court has not ruled on it yet, but there are strong indications that most of the justices believe that the CDC lacks the authority to halt evictions. Here’s what you need to know about the latest extension:
Continue Reading The CDC’s New Eviction Moratorium Extends the Uncertainty for Landlords and Tenants

Defaulting renter with facemask receives letter giving notice of eviction from home on wooden tableDrake Goodman and Patty Palmer lease a studio apartment to Carter Haynes. But Haynes has not paid rent since last May, when the shelter-in-place orders caused his fledging restaurant to go out of business. While sympathetic to Haynes’s plight, the loss of rental income has severely damaged Goodman and Palmer’s own finances, and they are growing increasingly desperate. Can they evict Hayes? Should they?
Continue Reading CDC’s Eviction Moratorium: Legal Limbo for Landlords and Tenants

open sign on business door

Reeling from months of governmental orders that required all restaurants to close their doors, Chez Quis was elated to re-open and welcome back its diners, even at a reduced capacity. But elation quickly turned to despair when Chez Quis learned that one of its longtime customers, Abe Froman, had sued the restaurant for allegedly contracting the coronavirus (COVID-19) while dining there. Has Chez Quis jumped out of the frying pan and into the fire?
Continue Reading Stay Shut Down or Be Sued? The Risk to Your Business from COVID-19 Premises-Liability Claims

The extraordinary measures designed to slow the spread of coronavirus (COVID-19) continue to cause constitutional clashes. My last post’s opening hypothetical about members of a congregation being ticketed for attending church services has now become a reality, and the Supreme Court has given its first hint on how it would strike the balance between fundamental constitutional rights and the government’s interest in preserving public health.
Continue Reading COVID-19 v. the Constitution: The Conflict Continues

stay home stay safe orderIn an attempt to slow the spread of coronavirus (COVID-19), the county judge has issued a shelter-in-place order that prohibits all public gatherings. Violations are a misdemeanor punishable by a fine of $1,000 or 180 days imprisonment. Defying the order, Reverend Elmer Gantry opens his church on Sunday morning to a smaller but still enthusiastic congregation. As the members leave at the end of the service, they are met by a sheriff’s deputy, who hands each of them a ticket for violating the order. Reverend Gantry proclaims that fining people for attending church violates their constitutional right to freely exercise their religion. Will the First Amendment be their salvation?
Continue Reading COVID-19: Are Your Constitutional Rights Quarantined Too?

Closed sign. (Sorry we are closed)

Wanting to diversify his investments, Ernest “Big Daddy” Bux signed a franchise agreement with GA Fitness last year. Construction by Big Daddy’s contractor Bill Toosuit is scheduled to be completed for in time for an early May grand opening in the new strip center owned and managed by Mawl & Mawl. Last week, in response to the COVID-19 pandemic, the town’s mayor and the state governor prohibited any gathering of more than 10 people and directed that all bars, restaurants and gymnasiums close. Now that gymnasiums are prohibited from opening, Big Daddy’s business is almost certain to fail, and Mawl & Mawl loses a tenant. If Big Daddy stops construction and buys out his current lease obligation, Bill Toosuit loses his construction project and Mawl & Mawl loses a long-term tenant. Can Big Daddy get out of his lease obligations? And his construction contract? Are there other options to get to a win-win?
Continue Reading Can COVID-19 Trigger a Force Majeure Defense?

Woman hangs a card with information about the store closing on a shop window due to the coronavirusWanting to diversify his investments, Ernest “Big Daddy” Bux signed a franchise agreement with GA Fitness last year. Construction by Big Daddy’s contractor Bill Toosuit is scheduled to be completed for in time for an early May grand opening in the new strip center owned and managed by Mawl & Mawl. Last week, in response to the COVID-19 pandemic, the town’s mayor and the state governor prohibited any gathering of more than 10 people and directed that all bars, restaurants and gymnasiums close. Now that gymnasiums are prohibited from opening, Big Daddy’s business is almost certain to fail, and Mawl & Mawl loses a tenant. If Big Daddy stops construction and buys out his current lease obligation, Bill Toosuit loses his construction project and Mawl & Mawl loses a long-term tenant. Can Big Daddy get out of his lease obligations? And his construction contract? Are there other options to get to a win-win?
Continue Reading Can COVID-19 Make a Contract Impossible to Perform?